Remand for specific performance may be appropriate remedy for government’s breach of plea agreement in failing to recommend low-end sentence

PLEA AGREEMENT United States v. Vandam, No. 06-4104, ___ F.3d ___ (10th Cir. Jul 10, 2007)(Utah). Appeal of sentence for possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), and possession of firearm as felon in violation of 18 U.S.C. § 922(g)(2). HELD: Government breached plea agreement by failing to recommend sentence at low end of sentencing guidelines range. Government breach of plea agreement is not subject to harmless error review. Only question remaining after finding of breach by government is question of remedy. Where defendant does not seek to withdraw plea, but only seeks specific performance (i.e., resentencing with government’s promised recommendation), remand for resentencing is appropriate remedy. Read the opinion here.